ABDUS SALAM BUTT Versus IQBAL RAZZAQ BUTT

This revision application under section 115, C.P.C. arises out of the proceedings commenced by the applicant who filed Suit No.437 of 1979 (New No.438 of 1988) for possession and the other Suit No.1920 of 1981 (New No.2385 of 1985) for mesne profits and damages.

2. The facts as stated by the applicant are that he was tenant of the house bearing No.25/5/B/IV Nazimabad Karachi (herein after referred to as the disputed property) owned by one Mst. Qaiser Jehan Begum by virtue of an agreement dated 1-6-1976. He paid three instalments in advance and also gave money towards fixed deposit and obtained receipts from the landlady. On 10-9-1978 the applicant left for Peshawar where his father had died but when he came back on 5-12-1978 he found that his locks were broken and the house was unlawfully occupied by the respondents Nos. l and 2. The goods lying in the house were also misappropriated by them. He was not allowed to enter the house in dispute.

3. The applicant thereafter wanted to lodge F.I.R. with Nazimabad police station but the S.H.O. refused to register the same and it was only after representation to the Home Department, Government of Sindh that his F.I.R. dated 15-12-1978 was registered and respondents Nos. l and 2 were also challaned. The respondents, thereafter, filed Suit No.437 of 1979 (new No.438 of 1988) on 30-1-1979 for recovery of possession of the disputed property. Subsequently, in the year 1981 he filed another Suit No. 1920 of 1981 (New No.2385 of 1985) for recovery of mesne profit and damages. Both these suits were amalgamated and common issues were framed on 19-3-1991.

4. From the pleadings of the parties it appears that the disputed property had been the centre of serious dispute amongst the persons claiming its ownership. The house in dispute belonged to Shafi Muhammad and after his death it devolved upon his wife namely Mst. Kubra Bibi who was his sole surviving heir. She sold a portion of this house and gifted the remaining, which is subject-matter of the instant proceedings, while Mst. Qaiser Jehan let out the same to the applicant.

5. The respondent No.2 on the other hand claims that Muhammad Shafi was his uncle and he adopted him as his son. According to him, Mst. Kubra, who was a very old, ill and Pardahnashin lady, was fraudulently made to execute the gift in favour of Mst. Qaiser Jehan Begum.

6. The learned Senior Civil Judge framed as many as 11 issues out of which the one relevant for the purpose of disposal of other issues is;

"Whether the plaintiff was in possession, of suit house?"

7. The learned Senior Civil Judge held that the applicant was not in possession of the said property and subsequently dismissed both the suits by the impugned judgment dated 25-8-1994. According to the trial Court, the applicant failed to appear and led his case in person and did not examine any witness of the locality and the persons examined by him were interested witnesses. Furthermore, the landlady was not examined in Court and as observed by the learned Judge the applicant did not produce any documentary evidence to establish his tenancy. It was, therefore, held that the applicant failed to discharge his burden to prove that the disputed property was in his possession.

8. I have heard the learned counsel for the applicant and learned counsel for the respondents Nos.3 and 4. The later has submitted statement that they have no interest in the suit or this revision application. The respondents Nos.1 and 2 were called absent: I have also perused the record.

9. It has been contended by the learned counsel for the applicant that the findings of the subordinate Court is based on misreading of evidence and that the jurisdiction vested under section 9 of the Specific Relief Act (hereinafter referred to as the Act) has not been exercised according to law. The documents produced by the applicant were not looked into and the statement of his witnesses were not considered. It was further contended that the trial Court while coming to its conclusion was guided by extraneous consideration.

10. From the record of the case, I find that the applicant produced among others the following documents through his attorney, Zamir Ahmed Ansari.

(1) Tenancy agreement dated 1-6-1976 executed by the applicant and Mst. Qaiser Jehan Begum.

(2) Receipts showing payment of three months advance and fixed deposit.

(3) Extract from Excise and Taxation Department showing Mst. Qaiser Jehan Begum as owner and the applicant as occupant.

(4) Letter of Habib Bank sent to the applicant at his address being the disputed property.

(5) Copy of the F.I.R.

(6) F.I.R. certificate dated 6-5-1986 issued by Income Tax Department and showing residential address of the applicant at the said property.

The applicant examined the following witnesses:--

(a) Zamir Ahmed Ansari.

(b) Masood A. Abbasi.

(c) Wazir H. Rizvi.

(d) Saeedur Rehman.

11. Zamir A. Ansari is the general attorney of the applicant and also one of the witnesses to the tenancy agreement executed between the applicant and his landlady. He also produced the documents mentioned above and similarly Masood Ahmed Abbasi is the general attorney of the landlady. Mst. Qaiser Jehan Begum and he is also her husband. He admitted tenancy agreement and also the possession of the said premises by the applicant. Wazir H. Rizvi and Saeedur Rehman both of whom are independent witnesses stated that they had visited the disputed premises and met the applicant there in connection with some work which they wanted to assign to the applicant who was a petty contractor. The statements of these witnesses as well as the documents produced by Zamir Ahmed Ansari go to prove that the applicant had been in possession of the suit property. It is established legal position that in a suit for specific performance under section 9 of the Act what is relevant is his possession and not the title although contrary has been erroneously observed and concluded by the learned trial Court.

12. The provisions of law contained in section 9 of the Act has four ingredients:--

(1) persons suing must have been dispossessed;

(2) such dispossession must be from immovable property;

(3) dispossession should be otherwise without consent and

(4) dispossession should be otherwise than in due course of law;

13. As was held by the Hon'ble Supreme Court, in Dr. Riaz v. Razi Muhammad, 1982 SCMR 741 that section 9 of the Act in no way controls the operation of section 26 of Qanoon-e-Shahadat Act and has no concern whatsoever with title, but is merely a law for restoring possession which has been disturbed otherwise than in due course of law. It may be emphasised that no question of title either of the plaintiff or of the defendant can be raised or gone into in this case. Furthermore, the possession of the applicant in respect of disputed property has been fully established by the evidence on record. I also find that the general attorneys of the applicant as well as of the land lady appeared in court and examined themselves as witnesses. Their statements would therefore be as good as the statements of the applicant and his landlady. Mere fact that the applicant did not appear in person or that the landlady did not herself attend the Court will not in any manner prejudice the case of the applicant.

14. After having found that the applicant was in possession of the suit property the next question which arises is whether he was dispossessed according to law? It is established by the material on record that the respondent Nos. l and 2 forcibly occupied the disputed property during the absence of the applicant who has clearly made out a case for restoration of this possession. Therefore, Suit No.437 of 1979 (New No.438 of 1988) is decreed as prayed.

15. So far Suit No.2385 of 1985 (for mesne profit and damages) is concerned, it was pointed out by the learned counsel for the applicant that an appeal against the dismissal of this suit was preferred before the learned IInd Additional District Judge, Karachi Central and that appeal is still pending. Therefore, on disposal of this revision no further comment is required as the learned appellate Court is seized of the matter and would be at liberty to dispose of the same according to law.

Since the respondents Nos. l and 2 did not come forward to contest this revision application there would be no order as to costs.

A.A./F-22/K Order accordingly